‘Top two’ case reaches Supreme Court
Published: September 4, 2012 at 4:48 pm
Election officials said they must have a final court decision no later than 5 p.m. on Friday to pull the measure off the ballot or keep it there.
Opponents have appealed a lower court ruling last week that favored the initiative, arguing the judge failed to give them more time to show it lacked enough signatures to be on the ballot.
But supporters blamed the opponents’ inefficiency for their inability to present all of their evidence in court.
Critics and proponents of the initiative submitted their arguments to the high court today.
At issue is whether a Maricopa County Superior Court judge erred in its decision to allow the so-called “Top Two” proposal to stay on the November ballot.
Last week, the trial court invalidated more than 2,000 signatures from the initiative after concluding there was enough evidence to prove that two circulators have felony convictions and the omission of another circulator’s signature is a “fundamental defect” that questions the validity of signatures.
But the court concluded that the initiative’s proponents had exceeded the signature requirement and invalidating 2,000 signatures wasn’t enough to throw the measure off the ballot.
The court based that decision on a related lawsuit, where it decided a few hundred signatures that were invalidated by the Maricopa County Recorder should have been counted. That decision meant the initiative had enough signatures to qualify for the ballot.
The outcome of that case affected the second lawsuit, which opponents filed to derail the initiative. The opponents appealed the decision on that case to the state Supreme Court. They argued that their due process was violated when the trial court limited their time to present their evidence to two hours.
Also, they said the trial court should have accepted their evidence in one motion, which would have bought them more time to present their case.
In its legal brief to the Supreme Court, lawyers for Save Our Vote, the committee that is seeking to disqualify the initiative, said the trial court abused its discretion by not accepting its boxes of evidence in one motion.
The lawyers had organized their evidence into four categories to show the signatures were defective, including the claim that a circulator didn’t sign an affidavit and felons had gathered signatures, a violation of state law.
But Mike Liburdi, one of the lawyers, told the Arizona Capitol Times they were not able to present two other categories of evidence: that a circulator’s affidavit included the wrong resident address and out-of-state circulators failed to register with the Secretary of State’s office.
Instead, the court required the committee to introduce evidence “piecemeal,” which was particularly disadvantageous since it was given a strict two-hour period to present its testimony, the lawyers said.
The trial court’s decision prejudiced their case, lawyers for Save Our Vote said.
“Had they been able to conserve time by introducing the sheets at once, they could have focused on introducing evidence of additional signature sheet problems,” the lawyers said. “Appellants would have been able to disqualify substantially more signatures than OGC (Open Government Committee) was able to rehabilitate in the companion case…”
The lawyers also argued that the trial court violated the committee’s due process by refusing to give it additional time to present evidence.
They asked the Supreme Court to instruct the trial court to give the committee two additional hours of evidentiary hearing.
But the attorneys for the Open Government Committee, the group that is spearheading the “Top Two” initiative, said it was the other side’s fault it didn’t have enough time to present all its evidence.
The lawyers said Save Our Vote failed to renew their motion to have the boxes of evidence admitted “en masse.”
In short, the lawyers argued that the initiative’s opponents failed to ask for a wholesale admission of evidence and therefore have no standing to complain that they failed to present their entire case.
The proponents’ lawyers said the court refused to admit all the evidence at once because the other side’s initial witness had “insufficient personal knowledge” of the evidence.
But when they called another witness who had directed the sorting of the evidence, lawyers for the opponents didn’t ask the court again to have all their evidence admitted at once, the proponents’ attorneys said.
The proponents’ lawyers also rejected the claim that the trial court violated Save Our Vote’s due process.
Save Our Vote didn’t object when the trial court scheduled the hearing for half a day and when the court split the time between the two sides, said the lawyers for the Open Government Committee.
The timing of the lawsuit against the initiative also left the court with no time to extend the hearing for the plaintiffs, the lawyers added, noting that Maricopa County needed a final decision soon to do its job of printing ballots.
This is the second lawsuit involving the highly contentious proposal to replace the state’s primary system.
Last week, John Rea, the trial court judge who heard both cases, also ruled in favor of the initiative in the first case.
He said the initiative has enough valid signatures to go on the November ballot.
Rea found that 577 signatures earlier disqualified by the Maricopa County Recorder’s Office were actually valid
County elections director Karen Osborne said her office would not appeal the ruling because of the short timeframe officials have to start printing ballots for the general election.
“Time is of the essence, and we had to let everybody know that Friday was, in our opinion, the deadline for making decisions. We just need to get on with the general (election),” Osborne said.
The Open Government Committee had sued in court and tracked down many of the people who had signed the petitions and demonstrated that their signatures were legitimate.
That changed the invalidity rate in a sample that had been used to reject the initiative.
As a result, Rea concluded that the initiative actually exceeded the number of required valid signatures to put the initiative on the ballot by more than 6,000.
Rea also ordered election officials to include the initiative in the publicity pamphlet for the November ballot, which describes proposals to be decided in the general election.
The initiative needed 259,213 valid signatures qualify.
Based on the counties’ check of a 5 percent sample, the Secretary of State’s Office earlier determined the measure had only 249,068 valid signatures.
The campaign had submitted 358,629 signatures that were eligible for verification.
The Secretary of State’s Office forwarded 17,932 – a 5 percent sample – to the counties for verification.
The initiative needed 4,970 or fewer signatures from the sample to be invalidated to qualify for the ballot, but the counties nixed 5,291.
Joe Yuhas, a consultant for the campaign, said the shortened timeframe election officials had to validate the signatures led to the errors. He said election officials faced a time crunch in which they had to check three citizens’ initiatives in just 20 days, and that the Open Elections/Open Government Act was checked last.